Anonymous Donors, Power, and Women’s Autonomy

I’m surprised–perhaps even astonished–at the response to the last couple of posts and the comments provided have made me think a good deal more about the question of anonymity for sperm donors. I don’t want to repeat myself or respond specifically to comments her. After all, you can go back and read for yourself.

Instead I want to try approaching the same topic from a different direction. One critical question for me is what power/rights the donor (anonymous or not) should have. This is not something that has been much discussed in my other posts or comments. There we have focussed mostly on the rights of children, which is all well and good. But I think we also need to consider the power we are prepared to give a donor.

If a donor is deemed to be a legal parent than the donor has rights. By exercising those rights the donor can claim power. It’s most obvious that if the donor is a legal parent then the donor has power over the child. Parents always do have power over their children. Though this is probably worth thinking about, it’s not what want to focus on right now.

What matters to me right now is this: if the donor is a legal parent than the donor has rights equal to those of the other legal parent–the mother. (For now I’m going to focus on instances where a single woman wishes to raise her child by herself. There’s a different discussion to be had where the sperm is used by a couple , whether heterosexual or lesbian. I’ll save that for another post.)

In a very real way, this amounts to giving the donor power over that woman as well as her child. She may wish, for example, to send her child to a particular school. The donor, as a legal parent, can object and can insist that he have a role in the decision about education. similarly, the donor can insist on a role in choosing the religion (if any) in which the child is raised. And if the woman want to move to a different city with the child, the legal parent/donor can object that this will diminish his right to spend time with his child and request that a court prevent the move.

I cannot imagine that there are many single women who would accept this kind of intrusion into their lives and their planned families. If a woman in a state where a donor is a legal father (there are a number of them) asked me what to do, I’d suggest they use an anonymous donor in order to avoid this problem.

Of course, if the donor does not have the power of a legal parent, then the same woman might be much more open to the arguments that have been raised in favor of identified or identifiable donors. This is why I think the two issues (donor anonymity and donor status as a legal parent) are inextricably linked. If there children have a need or a right to be able to identify their donors, then the best way to get to that point is to recognize that donors are not legal parents.

I do realize there’s another response to my discussion above–you can conclude that single women shouldn’t be allowed to use ART to create families without fathers. That’s obviously a perspective out there, but it is one I reject.

Perhaps it would be constructive to consider what, if any, rights a donor (as opposed to a child) should have? I don’t think there is any particular need for the rights to be symmetrical. So, for example, I think I could say a child has a right to something from the donor without giving the donor any reciprocal right. My initial inclination, one I might be persuaded to move away from, is to say the donor doesn’t get any rights vis-a-vis the child or the recipient of the sperm. After all, no one forces the donor to donate.

10 responses to “Anonymous Donors, Power, and Women’s Autonomy”

I see no reason why even if a donor is a legal parent his rights and responsibilities can’t be restricted. For instance, the law could be changed that any father of a child born to a mother who conceived it other than in a co-habiting relationship with the father, is to be considered a non-custodial father with no rights or responsibilities other than those mutually agreed upon by the parents or imposed by the court.

It could also be tstiplulated that a court should have to grant leave before entertaining a claim of rights by a non-custodial father or demand for child support by a mother, and such leave should only be given to the father if the child has already developed an attachment to him, or to the mother if the child has special needs due to some fault of the father (eg. non-disclosure of a serious hereditary disorder) or if the child would otherwise live an unacceptably deprived life due to desperate poverty.

In the case of a one-night stand the court might always allow the claim of the mother to go ahead, but look as to whether the father has a relationship with the child before allowing his claim.

Another important safeguard could be not allowing retrospective claims for child support and of course if the mother demands child support the father’s right for visitation/custody would automatically be entertained and vv.

However, since the father would be the legal father, albeit a non-custodial father with no rights or responsibilities, his name could still go on the birth certificate.

The problem is that parental rights are already embedded in law quite firmly. They are quite numerous and pretty substantial. They can only be limited through some serious court proceedings.

What that means is if you start by making the donor a legal parent it’s very hard to take away some of what comes with that. I think you would have to do it one case at a time with a lot of court process. This would make it expensive and uncertain and would effectively make donor insemination untenable in most cases. I’m sure some think that is a good thing. I do not.

If you want the donor to have some rights you might go for it this way: First articulate exactly what rights you think the donor (generally speaking) ought to have. Once you’ve done that, you could set up a legal regime in which anyone who was a donor got those rights. It really wouldn’t matter what you called him so long as the definitions and all that were clear. Using a term that has another legal meaning already (as “father” does) might make it confusing, however, if you wanted to give it a special meaning here.

The big question, it seems to me, is what right the donor (not the child, not the mother) should have. A right to see the child? A right to a say in the child’s life?

An easier way to change family law rather than by court proceedings is via legislation and possibly the best way is through the model legislation put out by committees who write the uniform parentage acts.

Also, via educating state legislators about this need for a change to facilitate the human rights and needs of offspring – change could be enacted.

As a matter of legal integrity, I actually hate to see judges legislating from the bench even when they do it to try to achieve what they think is the right result. It is really offensive to me because in my view it substantially weakens the rule of law when judges essentially see themselves as legislators and not interpreters of legislations. Whenever I read decisions of activist judges – I feel threatened by their overstepping of their judicial function. Even though those judges obviously mean well and want to enhance human rights – it is their very act in becoming unelected makers of law rather than interpreters of law that makes me feel vulnerable to my legal rights by their diminution of the enforceability of statute. I know many people don’t see decisions that go their way in this light and just rejoice at the decision at hand, but for me the erosion of the legislative versus judicial divide is immensely worrying. That is why even though I wanted Sotomayor as judge, I understood the concerns of those who pointed to her enthusiasm for judicial activism.

There’s a world of things to say about the proper role of judges, but I think most of it is beyond the scope of what’s up here. Perhaps the simplest large point to make is that any time a judge strikes down a law because it violates the constitution she or he runs the risk of being labelled “activist” by whoever is unhappy. Yet measuring laws against the constitution is one of the central functions of the judiciary.

The most recent draft of the Uniform Parentage Act, which is the main bit of model legislation in this area, states quite explicitly that a donor is not a father. I don’t believe it takes any position on anonymity.

I will post on this topic once more tomorrow and then likely move along to something else. Not that I don’t love this topic, but at some point all the main points have been made.

Aside from parental rights, or not a donor may have. Only one question in the scheme of the
theme debated herein, is what about the children? The question of moral ethics, who ever thought that said donor whom may have a family, or acquire a family at some point in his life. Or even have several children from donation over some time, that said siblings
should by chance meet at some point in life
and fall in love. Has anyone ever thought of this? Some years ago, heard of a case in which
two people fell in love, had sex lived as a couple
and all, until they were planning their wedding.
came to find out they were of the same father.
Then they couldn’t marry It was devastating to all, she even had to have counseling to deal with
deep emotional scars. That is what scares me about this donor thing. People normally don’t get DNA test done before they fall in love. Some times they meet at a bar and go from there. And I wonder.?????

I would just add that your assumption what NO WOMAN will do may be a bit off, and that as a single woman seeking to become a mother, I would gladly choose to put up with such intrusions in my life, rather than leave my child longing for a nonexistent father. And many women share this view with me.

I think what I said was “I cannot imagine there are many.” In any event, it does, of course, depend on what the choices are. I think many women would choose an anonymous donor in order to protect their autonomy as a parent. Not all women, by any means.

As a lawyer, I would want to ensure that any single woman contemplating use of donor sperm in a state where a known donor would be recognized as a legal father understood what the implications of using a known donor: She would not be a single parent, but rather a co-parent with the known donor having rights equal to hers.

One thing that it seems to me would clearly be relevant would be if the known donor was a good and trusted friend. Undertaking to co-parent a child with a complete stranger seems to me to be a very difficult road that I imagine few would elect to travel.

Actually, the MAJORITY of my friends feel the same way as I do, so I guess it all depends who you hang around with- and like tends to associate with like…. And this INCLUDES my friends who are divorced mothers. Much as they can’t stand their exes involvement in their lives, they still value his participation in the childrens lives.
For most women, conceiving via sperm donor is a last resort, because they have failed to find someone to conceive with. Not because they would rather deprive their child of a father to ensure that they will always have the option of moving cross country, or whatever the hell else they are concerned about.

I’m sure that for some women conceiving via sperm donor is a last resort. But for some it is not. Most lesbian couples, for example, would reject being characterized as having “failed to find someone to concieve with.” And there are many single mothers who are single by choice. Check out the O Solo Mama blog in the blog roll or other postings here.

In the end, I don’t think we know how many of the single women who choose to use sperm donors would fall into the “failed to find someone” category.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.